PEOPLE OF MI V LERON JASON GIBSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 4, 2010
Plaintiff-Appellee,
v
No. 292902
Wayne Circuit Court
LC No. 08-015821-FH
LERON JASON GIBSON,
Defendant-Appellant.
Before: FITZGERALD, P.J., and MARKEY and BECKERING, JJ.
PER CURIAM.
A jury convicted defendant of felonious assault, MCL 750.82, and possession of a
firearm during the commission of a felony, MCL 750.227b. The trial court sentenced him to a
two-year prison term for the felony firearm conviction, to be followed by a five-year
probationary term for the felonious assault conviction. Defendant appeals as of right. We
affirm.
On the evening of Friday, February 15, 2008, James Lewis, an off-duty Wayne County
Deputy, went out to his unmarked police vehicle to retrieve a flashlight because of a power
outage. His house on Edmore Street in Detroit is on the corner of Edmore and Rex, and his
driveway is on the side of his house facing Rex. Lewis went out the side door of his house and
down his driveway toward his car, which was parked on Rex, facing north toward Edmore. He
used remote entry to unlock the car, which caused the dome light and the rear tail lights of the
vehicle to illuminate. The street lights were not on because of the power outage. Lewis opened
the door of the car, leaned inside, and looked for his flashlight on the floor of his car. He then
observed a black Dodge Charger driving southbound on Rex at a high rate of speed. There was
snow and ice on the ground, and the Charger was traveling approximately 40 to 50 mph in a 25
mph zone. Lewis became paranoid and withdrew his weapon from his hip holster. The Charger
came to an abrupt stop in the middle of the street approximately 20 to 25 feet south of Lewis’
car. Lewis began to “really take notice” at that time and stared at the Charger. Three young
black males exited the Charger and walked toward him. Defendant, who got out of the driver’s
side rear seat, which was the side of the Charger closest to Lewis, walked toward Lewis in a Bline. Lewis asked, “What’s up?” and defendant said, “What’s up” back to him. Defendant was
within 10 feet of Lewis, and Lewis was staring directly at him. Lewis also came within 15 feet
of Dartez Mahone, the man from the passenger side rear seat, and clearly saw his face. Lewis
noticed that defendant was shorter than his height of 5’8”, that he had a noticeable swagger when
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he walked, and that he had a low haircut. Defendant reached inside his coat, took out a rifle, and
aimed it at Lewis’ head. Lewis started firing at defendant, and then took cover behind his car.
When Lewis stood up from behind his car, he observed defendant running southbound on Rex.
Mahone was running westbound through Lewis’ neighbor’s yard. The Charger drive off heading
southbound on Rex. Lewis retrieved his cell phone and called police dispatch for backup. Police
officers Richardson and Mack, whom Lewis did not know, arrived in less than 4 minutes.
The day after the incident, Lewis received a call from someone in the neighborhood.
Based on information received during that call, Lewis went to his neighbor’s house, where he
observed the weapon used during the assault the night before in the neighbor’s garage. Lewis
had information suggesting the weapon was not initially found in the garage but rather outside in
the snow.
After the incident Lewis was contacted by the Eastpointe Police Department. Another
man, Nathaniel Jenkins, had confessed to participation in the incident. Lewis then went to the
police station to possibly identify another man involved in the incident. Lewis was shown a
photographic lineup of six black and white photocopied photos. Lewis picked out subject #6,
indicating “that is the subject that attempted to rob me on 2/15/08.” Within minutes of leaving
the police station, Lewis called Detective Monroe, the officer-in-charge of the case, and told him
that he was not sure if the man he picked out in the lineup was the man involved in the incident.
Lewis also called the officer at the Eastpointe Police Department and told him the same thing.
Lewis was concerned that the photos were blurry and that he could not see the height of the men
in the photos.
On June 3, 2008, while on his way home from work at approximately 11:00 p.m., Lewis
pulled into the parking lot of Eastland Liquor and Party Store on East 8 Mile Road in Eastpointe.
As he walked toward the entrance of the store, he observed four black males exiting the store.
Lewis immediately recognized two of the men as the men involved in the incident. Lewis drew
his weapon, identified himself as a police officer, and ordered the four men to the ground. Two
of the men – defendant and Mahone – complied with his order, and the other two men walked
toward their car. Without any question being posed to him, defendant started crying and said, “I
didn’t try to rob anybody.” Lewis asked someone to call the police, and Eastpointe police
officers arrived. Lewis told the officers that he recognized two of the men from an earlier
February incident. All four men were detained, and defendant and Mahone were placed under
arrest. Lewis did not have any doubt about defendant’s identity as the person involved in the
incident.
Defendant presented an alibi defense. Javon Scott, an 18-year-old friend of defendant’s,
testified that he was with defendant, Mahone, and another friend named John, all evening on
June 3, 2008. As they were leaving the Eastland Liquor Store, they were approached by a man
with a gun who said, “Get down.” The man had his gun out and was coming at them as they left
the store. Scott kept asking the man if he was robbing them. The man approached defendant and
Mahone and said, “These two punk mother f___s tried to rob me a couple months back.”
Defendant responded, “Man, I didn’t try to rob nobody.”
Defendant’s mother, Gerree Patton, testified that she drove defendant to and from
Kelwood High School on February 15, 2008. She recalled watching defendant walk in and out
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of school on February 15. At 6:00 p.m. that day, she drove defendant to the home of his
girlfriend, Artasia Smith, and then picked him up at 8:40 p.m. The two then went home, and
defendant never left the house again that night. Patton indicated that both she and defendant
went to bed at 2:00 a.m. and that she was certain that defendant never left home that night.
In rebuttal, Michelle Vanillas, the guidance counselor at Kelwood Alternative High
School, testified that official school records showed that defendant was suspended from the
school on January 22, 2008, for a period of 180 days. Starting February 11, 2008, his official
status became “not enrolled” and this status existed until June 12, 2008.
Defendant first argues that he was denied a fair trial as the result of judicial bias.
Because defendant never moved to disqualify the trial judge pursuant to MCR 2.003, this claim
is reviewed for manifest injustice. People v Paquette, 214 Mich App 336, 340; 543 NW2d 342
(1995).
Defendant refers this Court generally to a large number of transcript page numbers, and
asserts that the information found on these pages supports defendant’s argument that the trial
court demonstrated bias against defendant and in favor of the prosecution by sustaining 108
prosecutorial objections and by “sua sponte interjections that belittled” defense counsel.
Defendant suggests that the prosecutor was treated differently than defendant – i.e., that defense
objections were never sustained and that the trial court never sua sponte interjected as the
prosecutor questioned witnesses. Defendant then makes a number of generic contentions, such
as that “the jury got the impression that the judge knew [defendant] was guilty,” that it was
“evident the judge wanted the defendant was [sic] to be found guilty,” that the “jury came to
believe that the trial judge believed that [defendant] was guilty,” and that “the jury convicted
[defendant] because it saw a ‘blundering lawyer’.”
To properly present an appeal, an appellant must appropriately argue the merits of the
issues he identifiesin his statement of the questions involved. DeGeorge v Warheit, 276 Mich
App 587, 596; 741 NW2d 384 (2007). An appellant’s failure to properly address the merits of
his assertion of error constitutes abandonment of the issue. People v Harris, 261 Mich App 44,
50; 680 NW2d 17 (2004). Defendant has abandoned this issue as he has failed to appropriately
argue the merits of his argument that the trial court demonstrated bias against defendant.
Nonetheless, defendant’s argument is without merit. “A trial court's conduct pierces the
veil of judicial impartiality where its conduct or comments unduly influence the jury and thereby
deprive the defendant of a fair and impartial trial.” Paquette, 214 Mich App at 340. Defendant
must show actual personal bias or prejudice, MCR 2.003(B)(1); People v Wells, 238 Mich App
383, 391; 605 NW2d 374 (1999), and must overcome the strong presumption that the judge was
impartial. Id.
An exhaustive review of the trial transcript reveals that defendant’s claim of judicial bias
is misplaced. Defendant’s argument is premised mainly on the assertion that the trial court
sustained 108 of the prosecutor’s objections. Although the trial court did sustain a number of the
prosecutor’s objections, the trial court also overruled a number of the prosecutor’s objections.
The trial court also sustained a number of defense counsel’s objections. The trial court sua
sponte interjected comments directed to both the prosecutor and defense counsel, on numerous
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occasions. Although more comments were directed to defense counsel as defense counsel was
nearly deaf, and his co-counsel did little to aid him, the trial court’s comments were clearly
designed to control the proceedings in the courtroom. The trial court became frustrated at times
with having to shout and to repeat comments, as well as with defense counsel’s refusal to adhere
to directions provided by the court. However, critical comments directed to a party or to a
party's attorney ordinarily do not support a finding of bias or prejudice, People v Wells, 238
Mich App 383, 391; 605 NW2d 374 (1999), nor do expressions of impatience, dissatisfaction,
annoyance, and even anger, that are within the bounds of what imperfect men and women
sometimes display. Cain v Dep't of Corrections, 451 Mich 470, 497 n 30; 548 NW2d 210
(1996). Defendant has failed to demonstrate that the trial court’s conduct or comments were of
such a nature as to unduly influence the jury and thereby deprive defendant of his right to a fair
and impartial trial.
Defendant argues in the alternative that if this Court concludes that the prosecutor made
valid objections and that the trial court validly sustained these objections, then “this Court must
find that trial counsel had no idea on how to try any case, and has no idea of the rules of
evidence.” Defendant presents no further argument regarding this assertion, other than to state
that
This court should find that counsel Mr. Davis was a “blundering lawyer” who had
no proper trial strategy and who indicated that his knowledge of the law and court
rules was severely deficient so as to justify 108 objections then it must find that
[defendant] was denied the effective assistance of counsel . . .
Again, this argument is not properly presented.
Nonetheless, a claim of ineffective assistance of counsel requires a defendant to show
that counsel’s performance fell below an objective standard of reasonableness, and that the
representation so prejudiced the defendant as to deprive him of a fair trial. People v Stanaway,
446 Mich 643, 687-688; 521 NW2d 557 (1994). To show prejudice, the defendant must
demonstrate a “reasonable probability” that the result of the proceedings would have been
different absent counsel’s errors. Id. Given the evidence of guilt, and the weakness of
defendant’s alibi defense, a reasonable probability does not exist that the result of the
proceedings would have been different absent defense counsel’s alleged errors.
Defendant next argues that a mistrial should have been granted following the midtrial
disclosure of defendant’s alleged verbal confession because defendant was prejudiced by the late
disclosure. We review for an abuse of discretion a trial court’s decision whether to grant or deny
a motion for mistrial. People v Gonzalez, 193 Mich App 263, 266; 483 NW2d 458 (1992).
Defendant argues that the trial court should have granted a mistrial because the
prosecutor failed to provide defense counsel with a report or information indicating that
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defendant had verbally confessed to the incident.1 Initially, it is questionable whether
defendant’s statement that “I didn’t’ rob anyone” can be considered a confession. Additionally,
there is no dispute that no report existed regarding defendant’s statement. Even assuming that a
discovery order existed, and that the prosecutor violated the order, no prejudice can be shown.
The statement was defendant’s own statement, and defendant’s own witness, Javon Scott,
testified that defendant made the statement in question during his arrest. Defense counsel’s
assertion that was surprised by the revelation of the alleged confession during trial is not
supported by the record. A defendant is not prejudiced by the failure or untimely release of his
own statement during discovery, because he has independent knowledge of its existence. People
v Taylor, 159 Mich App 468, 487-488; 406 NW2d 859 (1987). Defendant has failed to
demonstrate that the trial court erred by denying defendant’s motion for a mistrial.
Lastly, defendant avers that the prosecutor introduced insufficient evidence of his identity
as the culprit of the charged assault. This Court views the evidence in the light most favorable to
the prosecution to determine whether a rational trier of fact could find that the essential elements
of the crime were proven beyond a reasonable doubt. People v Nowack, 462 Mich 392, 399; 614
NW2d 78 (2000). However, this Court should not interfere with the fact-finder's role of
determining the weight of the evidence or the credibility of the witnesses. People v Wolfe, 440
Mich 508, 514-515; 489 NW2d 748, amended 441 Mich 1202 (1992). Satisfactory proof of the
elements of the crime can be shown by circumstantial evidence and the reasonable inferences
arising therefrom. People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). It is for the
trier of fact to determine what inferences fairly can be drawn from the evidence and the weight to
be accorded to those inferences. People v Hardiman, 466 Mich 417, 428; 646 NW2d 158
(2002). All conflicts in the evidence must be resolved in favor of the prosecution. People v
Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997).
Identity is an essential element of every crime. People v Yost, 278 Mich App 341, 356;
749 NW2d 753 (2008), citing People v Oliphant, 399 Mich 472, 489; 250 NW2d 443 (1976).
Thus, the prosecution must present sufficient evidence to prove beyond a reasonable doubt that it
was the defendant who committed the crimes alleged. People v Kern, 6 Mich App 406, 409; 149
NW2d 216 (1967). “The credibility of identification testimony is a question for the trier of fact
that we do not resolve anew.” People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000).
Here, Lewis testified that on the night of the assault he stared directly at defendant. He
observed that defendant was shorter than Lewis’ height of 5’8”. Lewis saw defendant a few
months later at a convenience store, and immediately recognized him as the man who assaulted
1
In the body of his argument, defendant also makes reference to the prosecutor’s failure to
provide a report or information regarding Lewis’ misidentification of a suspect during the
photographic lineup. This alleged failure is not mentioned in the statement of the question
presented as a ground for mistrial. Additionally, later in the body of the argument, defendant
argues the grounds for mistrial and, again, this ground is not mentioned. Thus, this report will
not address the misidentification as a ground for mistrial.
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him. Lewis did not have any doubt about defendant’s identity as the person who assaulted him.
The testimony of a victim, including identification testimony, is sufficient to establish
defendant’s guilt beyond a reasonable doubt. People v Davis, 241 Mich App 697, 700; 617
NW2d 381; People v Taylor, 185 Mich App 1, 8, 460 NW2d 582 (1990).
Defendant’s reliance on Lewis’ mistaken identification at a photographic lineup, as well
as varying descriptions of defendant contained within police reports, is misplaced. Claims of
mistaken identification by a witness, as well as claims that a witness gave varying descriptions of
the suspect, deal with the credibility of a witness and are generally questions to be decided by the
jury. People v Taylor, 185 Mich App 1, 8; 460 NW2d 582 (1990). This Court does not review
issues of credibility anew. People v Vaughn, 186 Mich App 376, 380; 465 NW2d 365 (1990).2
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Jane E. Markey
/s/ Jane M. Beckering
2
Defendant does not specifically contest the sufficiency of proof of the other mandatory
felonious assault elements. Nonetheless, our review of the record reveals substantial proof of the
requisite felonious assault elements. MCL 750.82; People v Chambers, 277 Mich App 1, 8; 742
NW2d 610 (2007).
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